Autodesk Inc v Dyason

REASONS FOR JUDGMENT The Proceedings This is the hearing of a notice of motion, filed on 18 July 1997, on behalf of the first respondent ("the Minister") for an order that an appeal, purportedly instituted by the filing of a notice of appeal on 23 April 1997, be dismissed as incompetent. The Minister moves under Federal Court Rules ("FCR"), O 52, r 18(1), which provides that a respondent may move on notice, at any time, for an order dismissing an appeal as incompetent. Upon the hearing of the motion the burden of establishing the competency of the appeal is on the appellant: FCR, O 52, r 18(2). The notice of appeal filed by the appellant (as we shall describe her throughout this judgment) purports to appeal from the judgment of a Judge of this Court, Davies J, given on 4 April 1997. In that judgment, his Honour ordered that an application for extension of time in which to file and serve a notice of appeal from the judgment of another Judge of the Court, Lindgren J, be refused. The Minister submits that Davies J, in exercising the power granted by s 25(2)(b) of the Federal Court of Australia Act 1976 (Cth) ("Federal Court Act") to hear and determine the application for an extension of time in which to appeal to the Court, was exercising the appellate jurisdiction of the Court and that the appeal to the Full Court from Davies J's decision is incompetent. Background The background facts can be stated briefly. The appellant arrived in Australia on 10 November 1990, claiming to be the spouse of a Mr Darwiche. As the result of complaints made to the Department of Immigration and Multicultural Affairs in 1994 by a Mr Buksh, the Department investigated the appellant's case. Mr Buksh was the landlord of the appellant and of a Mr Prasad (with whom she was living) from 1991 to 1993. In 1993 Mr Buksh sold to the appellant and Mr Prasad the house in which they lived. A dispute subsequently arose between Mr Buksh, on the one hand, and the appellant and Mr Prasad, on the other. Apparently this dispute prompted Mr Buksh to "inform" on the appellant. On 20 October 1995, the Minister's delegate decided to cancel the visas held by the appellant. On 19 December 1995, the Immigration Review Tribunal ("IRT") affirmed the delegate's decision. The IRT found that the appellant had provided incorrect information on her application for migration to Australia. In particular, the IRT found that the appellant failed to disclose that Mr Darwiche had been in a de facto relationship with her sister and that the appellant had given false information concerning her relationship with Mr Prasad. The evidence before the IRT included a letter of complaint about the appellant from Mr Buksh and a statutory declaration by Ms Ahmed, Mr Buksh's wife. Mr Buksh gave evidence at the IRT's hearing on 15 November 1995. He died on 18 May 1996. The appellant applied to the Court, pursuant to s 476 of the Migration Act 1958 (Cth) ("Migration Act") for review of the IRT's decision. The application was heard by Lindgren J, who dismissed the application in a judgment delivered on 29 November 1996. The appellant was represented at the hearing before Lindgren J by counsel, instructed by a firm of solicitors. The only ground for review pressed at the hearing before Lindgren J was that referred to in s 476(1)(f) of the Migration Act, namely, that "the decision was induced or affected by fraud". It was the appellant's case before Lindgren J that the IRT's decision had been induced or affected by the fraud of Mr Buksh, who had given and procured false evidence. Lindgren J held that the expression "induced or affected by fraud", used in s 476(1)(f) of the Migration Act, meant that the relevant decision had to have been actually induced or affected by fraud. He rejected the appellant's contention that it was enough for her, in order to satisfy s 476(1)(f), to show that there was a "real possibility" or a "real suspicion" that the IRT's decision was induced or affected by fraud. Lindgren J found that the affidavit evidence on the question of fraud was unsatisfactory. Accordingly, he could not be satisfied on the "Briginshaw" standard (Briginshaw v Briginshaw (1938) 60 CLR 336) that the evidence given to the IRT, in particular by Mr Buksh and his wife, had been fraudulent. Moreover, his Honour found that the critical findings made by the IRT did not depend at all on the evidence of Mr Buksh. On 30 December 1996, the appellant, through her solicitors, filed an application for extension of time in which to file and serve a notice of appeal from the judgment of Lindgren J given on 29 November 1996. The application stated that an extension of time was required because a notice of appeal had not been filed within the time limited by FCR, O 52, r 15, that is, twenty-one days after the date the judgment appealed from was pronounced. The application was supported by an affidavit from the appellant's solicitor, which explained the failure to file the appeal within the prescribed time, on the ground that he had mistakenly thought that the appellant had twenty-eight days in which to lodge the appeal. The solicitor deposed that he had attempted to file a notice of appeal on 24 December 1996, but had been informed by the Court's registry at that time of his error. The application for leave to appeal out of time was listed before Davies J, a single Judge of the Court, for hearing on 21 February 1997. There was no evidence before us as to the circumstances in which the application came to be listed before Davies J, as distinct from a Full Court. However, we understand that it is the usual practice in the New South Wales Registry of the Court (the "Registry") for applications for leave to appeal out of time to be listed, at least in the first instance, before a single Judge of the Court. In any event, both the appellant (the applicant for leave to appeal out of time) and the Minister were represented by counsel at the hearing before Davies J. It was common ground in the present proceedings that neither counsel adverted to the question of whether the application was one that was appropriate to be heard and determined by a Full Court, rather than by a single Judge. Davies J reserved his decision and delivered judgment on 4 April 1997. His Honour refused the application for an extension of time. He accepted the explanation of the appellant's solicitor for the delay in filing the notice of appeal. However, his Honour agreed with Lindgren J that the appellant's construction of s 476(1)(f) of the Migration Act, that is that the IRT's decision could be set aside if there was a real possibility or a real suspicion that the decision had been induced or affected by the fraud of a witness, was untenable. In the light of this conclusion, and having regard to Lindgren J's finding that fraud on the part of witnesses had not been established, Davies J considered that the appeal had no prospects of success. Accordingly, he dismissed the motion, with costs. The orders made by Davies J were entered by the Court on 11 April 1997. On 23 April 1997, the appellant filed a notice of appeal purporting to appeal from Davies J's judgment. The notice of appeal sought orders setting aside Davies J's orders and extending the time for the appellant to file and serve a notice of appeal from Lindgren J's judgment. The first respondent's notice of motion, seeking orders that the appeal be dismissed as incompetent, was filed on 11 June 1997. The second respondent filed an appearance submitting to the jurisdiction of the Court. The Relevant Provisions Section 14(1) of the Federal Court Act provides that, for the purposes of the exercise of the jurisdiction of the Court, the Court may be constituted by a single Judge or as a Full Court. A Full Court consists of three or more Judges sitting together, although in certain circumstances it may be constituted by two Judges: s 14(2), (3). Section 15(1) of the Federal Court Act provides as follows: "The Chief Justice is responsible for ensuring the orderly and expeditious discharge of the business of the Court and accordingly may, subject to this Act and to such consultation with the Judges as is appropriate and practicable, make arrangements as to the Judge or Judges who is or are to constitute the Court in particular matters or classes of matters." Except as otherwise provided, the original jurisdiction of the Court is to be exercised by a single Judge: s 20(1). The Chief Justice may direct that the jurisdiction of the Court in a matter within the original jurisdiction of the Court, if of sufficient importance, should be exercised by a Full Court: s 20(1A). Part III, Division 2 of the Federal Court Act includes the following provisions: "24(1)Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine - (a) appeals from judgments of the Court constituted by a single Judge; (b) appeals from judgments of the Supreme Court of a Territory; and (c) in such cases as are provided by any other Act, appeals from judgments of a court of a State, other than a Full Court of the Supreme Court of a State, exercising federal jurisdiction. ... 24(1A)An appeal shall not be brought from a judgment referred to in sub-section (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal. ... 25(1) The appellate jurisdiction of the Court shall, subject to this section and to the provisions of any other Act, be exercised by a Full Court. 25(2) Applications: (a) for leave or special leave to appeal to the Court; or (b) for an extension of time within which to institute an appeal to the Court; or (c) for leave to amend the grounds of an appeal to the Court; or (d) to stay an order of a Full Court; may be heard and determined by a single judge or by a Full Court." FCR, O 52, r 15(2) provides as follows: "15(2) Notwithstanding anything in the preceding sub-rule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal." The word "Court" is defined in O 52 to mean "the Court exercising its appellate or related jurisdiction under Part III, Division 2 of the Act": FCR, O 52, r 1. The Cases The authorities clearly establish that an appeal from the refusal of a single Judge to grant leave to appeal from an interlocutory decision is incompetent. The point was specifically addressed in Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424 (Fed Ct/FC). In that case, a single Judge of the Court refused leave to appeal against an interlocutory judgment. The applicants sought the leave of the Full Court to appeal against both the judgment and the refusal of the single Judge to grant leave to appeal. The Court held that the effect of ss 24(1A) and 25(2) of the Federal Court Act, when read together, was that an application could be made to either a single Judge or the Full Court for leave to appeal from an interlocutory judgment. It was plain from the language of s 25(1) and (2) that any such application was heard and determined as part of the Court's appellate jurisdiction. While the Court's appellate jurisdiction was in general exercised by a Full Court, s 25(2) provided an exception to this rule, an exception for which there were "sound practical reasons" (such as the difficulty of convening Full Courts at short notice and the "obvious desirability" in some cases of applications being heard and determined by the Judge who made the orders): at 432. The Court observed (at 433) that "[a] party must elect to apply for leave to appeal to this Court constituted by a single judge or a Full Court. As the Court remarked in Reid v Nairn [(1985 60 ALR 419 (Fed Ct/FCA)], the parties' election is between two alternatives which are neither progressive nor successive". It followed that, since the applicants had applied unsuccessfully to a single Judge for leave to appeal from the original interlocutory judgment, they had "made their election" and could not later apply for leave to appeal from that judgment. Nor could leave to appeal be sought from the refusal of the single Judge to grant leave. The present case involves a refusal by a single Judge to grant leave to file an appeal out of time from a final judgment of another Judge, as distinct from a refusal to grant leave to appeal from an interlocutory judgment. This issue arose in Hall v Anderson (Fed Ct/FC, 18 July 1997, unreported). In that case, a Judge of the Court dismissed an application by a bankrupt seeking annulment of her bankruptcy. Some fifteen months later, the bankrupt applied to another single Judge for an extension of time within which to file a notice of appeal against the decision to dismiss her application for annulment of the bankruptcy. The second Judge rejected the application for an extension of time and the bankrupt filed a document styled "Notice of Appeal", seeking to appeal against the orders made by the second Judge. The Full Court held that the appeal was incompetent. Their Honours pointed out that the second Judge was exercising the appellate jurisdiction of the Court. After referring to Reid v Nairn and Thomas Borthwick v TPC, the Court held (at 10) that the "power under O 52 r 15(2) of the [FCR] for "the Court or a Judge" for special reasons at any time to give leave to file and serve a notice of appeal involves a true alternative and not a progressive choice. A party wishing to apply for an extension of time within which to institute an appeal must elect between approaching a Full Court or a single judge. In our opinion, where a Judge has refused to give leave to file and serve a notice of appeal outside the period referred to in O 52 r 15, no appeal to the Full Court, nor an application for leave to appeal made to a Full Court, from a decision of the Judge refusing leave, is competent. It follows that the present appeal is not competent." Implicit in this conclusion is the proposition that the conferral of jurisdiction on the Court to hear and determine appeals from judgments of the Court constituted by a single Judge (Federal Court Act, s 24(1)(a)) is limited to appeals from judgments of a single Judge exercising the original jurisdiction of the Court in the manner contemplated by the Federal Court Act, s 20(1). In our view, the reasoning in Thomas Borthwick v TPC and Hall v Anderson applies in the present case. It may be arguable whether the order in Hall v Anderson dismissing the bankrupt's application for annulment of her bankruptcy was final or interlocutory in character. However, the Full Court in Hall v Anderson did not regard that as material. Their Honours' reasoning rests on the proposition that the power recognised in FCR, O 52, r 15(2), like that in s 24(1A) of the Federal Court Act, involves a true alternative and not a progressive choice. It also rests on the proposition that a single Judge hearing an application for an extension of time within which to institute an appeal to the Court is exercising the appellate jurisdiction of the Court. Both propositions apply in the circumstances of the present case to render the appeal incompetent. The Appellant's Submissions Mr Toner, who appeared for the appellant, did not dispute that this was the effect of the authorities. He submitted, however, that s 25(2) of the Federal Court Act requires an applicant for leave to appeal out of time to make an election between having the application dealt with by a single Judge or by a Full Court. He further submitted that no election was offered to the appellant by the Registry or by the Judge hearing the application. This was "manifestly unfair" to the appellant. Mr Toner contended that the Court has an inherent jurisdiction to set aside the orders made by the Judge and to determine the application for extension of time afresh. In support of that contention he referred to observations of Gummow J in Dallhold Investments Pty Ltd (In Liq) v Gold Resources Australia Ltd (Prov Liq Apptd) (1991) 31 FCR 587 (Fed Ct/Gummow J), at 596. His Honour there referred to the Court's "inherent power to prevent misuse of its procedures in a way which, although not inconsistent with their literal application, nevertheless would be manifestly unfair to a party to the litigation, or would otherwise bring the administration of justice into disrepute among right thinking people". Dallhold Investments was not, however, a case in which an application was made to set aside or modify orders previously made by the Court. The appellant in the present case did not file any notice of motion or other process (except the notice of appeal) seeking to invoke what was said to be the inherent jurisdiction of the Court to reconsider the orders made by Davies J. Issues Mr Toner's brief submissions did not directly address a number of issues that appear to arise if the appellant is to succeed in re-opening the orders made by Davies J, which were entered on 11 April 1997. These issues include the following: · Does the Court have jurisdiction to reconsider orders made by a Judge in the exercise of the Court's appellate jurisdiction, where those orders have been duly entered? · If there is such jurisdiction, how is it to be invoked? Should application be made to the Judge who made the orders, or can it be made to a Full Court? If the latter, what is the appropriate procedure to follow? · If the Court does have jurisdiction to reconsider the orders, in what circumstances should be the Court be prepared to do so? · Do those circumstances exist in the present case? To address Mr Toner's submissions it is not necessary to consider each of these questions in detail. It is, however, necessary to say something about the first and third questions. We then address the fourth question, on the assumption that the answer to the first question is in the affirmative. Jurisdiction to Reopen Orders The FCR provides for the setting aside of judgment or orders of the Court. Order 35, r 7 provides as follows: "7(1) The Court may vary or set aside a judgment or order before it has been entered. 7(2) The Court, where it is not exercising its appellate or related jurisdiction under Division 2 of Part III of the Act, may if it thinks fit vary or set aside a judgment or order after the order has been entered where: (a) the order has been made in the absence of a party...; (b) the order was obtained by fraud; (c) the order is interlocutory; (d) the order is an injunction or for the appointment of a receiver; (e) the order does not reflect the intention of the Court; or (f) the party in whose favour the order was made consents." It will be seen that O 35, r 7(2) applies only where the Court is not exercising its appellate jurisdiction: cf R D Werner & Co Inc v Aluminium Products Pty Ltd (1988) 18 FCR 389 (Fed Ct/FC), at 396, per Woodward and Foster JJ. There is considerable authority on the scope of powers analogous to those conferred on the Court by FCR, O 35, r 7(1) (that is, in relation to setting aside a judgment or order before it has been entered). The High Court, in a series of cases, has accepted that it has jurisdiction to entertain an application to set aside orders made by it. In State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (No 2) (1982) 150 CLR 29, Mason and Wilson JJ expressed no doubt that the jurisdiction existed, but said (at 38) that the power is to be exercised "with great caution" and that the "circumstances that will justify a rehearing must be quite exceptional". Brennan J in the same case cited (at 45-46) comments made by Lord Brougham in Rajunder Narain Rae v Bijai Govind Sing (1839) 2 Moore Ind App 181, at 220; 18 ER 269, at 284, that the "indulgence" to allow a case to be reheard "is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of the last resort, whereby some accident, without any blame, the party has not been heard, and an Order has been inadvertently made as if the party had been heard." In Wentworth v Rogers (No 9) (1987) 8 NSWLR 388 (S Ct NSW/CA), the Registrar had entered orders dismissing an appeal. Kirby P, delivering the judgment of the Court, explained (at 394) that the reason for the cautious attitude of the High Court in SRA v Codelfa Constructions "is obvious. It is stated by Mason and Wilson JJ in their judgment to be the public interest in maintaining the finality of litigation. Otherwise, a determined or wealthy litigant could postpone final judgment and exhaust the rights and funds of his opponent by continuously denying the finality of the judgment and seeking to reopen disputes which that judgment was designed to close, at least so far as the courts were concerned. Since the Australia Act 1986 determined appeals as of right to Her Majesty in Council, and since appeals now lie to the High Court of Australia only by special leave of that Court, the function of this Court has changed. There is now no further appeal from this Court as of right. For most litigants, this Court is the final place of appeal or review. It may therefore be appropriate to apply to this Court the same principles as are stated in State Rail Authority of New South Wales v Codelfa Constructions Pty Ltd, though with the modification that 'irremediable injustice' is not inevitable because of the avenue which is always open to a disaffected litigant to seek special leave to appeal from the High Court." In the circumstances of that case it was considered (at 395) clearly inappropriate to disturb the finality of the "simple order" previously made by the Court. In Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300, the High Court again addressed the question. Dawson J said this (at 317): "Whilst the Court has jurisdiction to entertain an application to vacate orders which it has made, at all events before those orders have been perfected by the entry of judgment (that not having occurred in this case), it is a jurisdiction to be exercised cautiously, bearing in mind the public interest in the finality of litigation. In Wentworth v Woollahra Municipal Council [(1982) 149 CLR 672, at 684], the Court said: '[T]he circumstances in which this Court will reopen a judgment which it has pronounced are extremely rare. The public interest in maintaining the finality of litigation necessarily means that the power to reopen to enable a rehearing must be exercised with great caution. Generally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard.'" [Some citations omitted.] See also at 301-303, per Mason CJ; at 328, per Gaudron J; Australian Fisheries Management Authority v P W Adams Pty Ltd (No 2) (1996) 66 FCR 349 (Fed Ct/FC), at 354-355. The observations of Kirby P in Wentworth v Rogers imply that an intermediate court of appeal has power to set aside or vary its own orders, even where they have been entered, albeit in very limited circumstances. In Haig v Minister Administering the National Parks and Wildlife Act 1974 (1994) 85 LGERA 143 (NSW S Ct/CA), his Honour specifically addressed the issue. He said this (at 153-154): "The question remains as to whether the jurisdiction to correct is available in the case of a perfected order. Whilst the Minister asserted that this Court had no jurisdiction, at least in a case such as the present, it is my view that such a jurisdiction exists. It is confined to the most exceptional circumstances. It is true that earlier decisions doubt the existence of this jurisdiction, statute apart: see, eg, Bailey v Marinoff (1971) 125 CLR 529 at 531. However, later decisions have acknowledged the inherent jurisdiction in a court such as this to set aside a previous order in limited circumstances. As for example where the order did not conclude litigation but merely regulated procedure and where its execution would result in futility: see, eg, Wentworth v Attorney-General for the State of New South Wales (1984) 154 CLR 518 at 526. However, it has been emphasised that such inherent power, where it exists, 'is not lightly to be exercised'. It is truly exceptional. In the case of the High Court of Australia, the jurisdiction to correct even perfected orders has certainly been acknowledged. It has been explained in terms of that Court's position 'as a final court of appeal to prevent irremediable injustice being done by a court of last resort': see Codelfa (at 45). However, in Wentworth v Rogers [No 9] at 394, this court pointed out that, since the termination of appeals to the Privy Council and the provision for appeals to lie to the High Court only by special leave of that Court, there is now no further appeal from this Court as of right.... I remain of the view which I expressed in Wentworth v Rogers [No 9] with the concurrence of Hope and Samuels JJA.... Neither the inherent power of the Court nor the power conferred by parliament under s 23 of the Supreme Court Act 1970 (NSW) is unlimited. Neither permits the Court to undo basic principles of jurisprudence in the name of an undefined feeling that an injustice has occurred which the Court must correct." In Donkin v AGC (Advances) Ltd (Fed Ct/FC, 30 August 1995, unreported), an application was made for leave to institute proceedings to set aside a decision of a trial Judge and the judgment of a Full Court which had dismissed an appeal from the trial Judge's decision. The application was referred by the Chief Justice to a differently constituted Full Court. Davies J referred in some detail to the authorities and said (at 9) that he was prepared to assume that the Court could "reopen a case if there were a truly exceptional circumstance apart from fraud which required a matter to be reopened in the interests of justice". Black CJ was prepared to make a similar assumption (at 2). However, his Honour pointed out that any such jurisdiction had to be exercised with great caution and having regard to the observations of the High Court in Wentworth v Woollahra MC. Should the Matter be Reopened? We are prepared to assume, without deciding, that the Court has jurisdiction to consider whether the orders made by Davies J should be set aside, notwithstanding that those orders have already been entered. We are also prepared to assume, without deciding, that the Court, as presently constituted, can exercise that jurisdiction, and can do so without the appellant filing documentation, other than the notice of appeal. Nonetheless, in our view, this is not a case in which the Court should set aside to modify the orders made by Davies J. The appellant's argument assumes that she had an election whether to approach a Full Court or a single Judge, when seeking leave to appeal out of time from the decision of Lindgren J. On that basis, we do not accept that there was any "manifest unfairness" to the appellant, by reason of the Registry or the Court not informing her, or her legal representatives, of what is said to be the election available under the Federal Court Act and the FCR. Nor do we accept that there was any unfairness in the Registry or the Court failing to advise the appellant, or her legal representatives, of the consequences of that election. Mr Toner frankly acknowledged that the appellant's legal representatives did not advert to the fact that she had or might have an election to apply, in the first instance, to a single Judge or to a Full Court. But both s 25(2) of the Federal Court Act and FCR, O 15, r 15(2) expressly contemplate that application for an extension of time to institute an appeal may be heard and determined by a single Judge or by a Full Court. It is true that Hall v Anderson , to which we have previously referred, was not decided until after Davies J delivered judgment in the present case. However, Thomas Borthwick v TPC was decided in 1988 and is a reported case. Moreover, that case, at the relevant time, was referred to, and indeed summarised, in practice books: see, for example, CCH Australian High Court and Federal Court Practice, Volume 2, par 21-520. The reasoning in Thomas Borthwick v TPC is clearly critical to the operation of s 25(2) of the Federal Court Act and FCR, O 15, r 15(2). The authorities to which we have referred have emphasised that, if there is a jurisdiction to set aside orders made after they have been entered, it is "truly exceptional". Moreover, generally speaking, the jurisdiction is not to be exercised unless it can be shown that, without fault on the applicant's part, he or she has not been heard on the relevant question. In our opinion, these conditions are not satisfied in the present case. It was open to the appellant, through her legal representatives, to make any representations she wished as to whether the application for leave to appeal out of time should be heard by a single Judge or the Full Court. Had the appellant's legal representatives taken this approach, there is, of course, nothing to suggest that either the Registry or Davies J (or any other Judge before whom the matter may have been listed), would not have given appropriate consideration to any request or submission the appellant wished to make. The appellant's failure to give any indication of her preference to the Registry, or to make a submission to Davies J, was attributable to the failure of her legal representatives to advert to the operation of the Federal Court Act and the FCR. This is not a failure that can be laid at the door of the Registry or the Court. In these circumstances, it cannot be said that the appellant has not been heard on an important issue without any fault on her part. The observations of Gaudron J in Re Coldham; Ex parte Municipal Officers Association of Australia (1989) 84 ALR 208 (H Ct), at 220, although directed to proceedings before a Tribunal, are relevant: "As was pointed out by Deane J in Sullivan v Department of Transport (1978) 20 ALR 323, at 343, procedural fairness requires only that a party be given a 'reasonable opportunity to present his case' and not that the tribunal ensure 'that a party takes the best advantage of the opportunity to which he is entitled'. And it is always relevant to inquire whether the party or his legal representative should reasonably have apprehended that the issue was or might become a live issue: see Re Building Workers' Industrial Union; Ex parte Gallagher (1988) 62 ALJR 81, at 84; 76 ALR 353 at 358." There is, of course, no suggestion that the hearing before Davies J, on the substantive question of whether leave should have been granted to the appellant, was conducted otherwise than fairly. We should add that there is no evidence before this Court, in what we have regarded as an application to set aside the ruling of Davies J, that, even if the appellant or her advisers had been aware that she could have sought a hearing before a Full Court, she would have taken advantage of that opportunity. Mr Toner asserted that she has lost the opportunity to have a Full Court review the decision of Lindgren J. However, that opportunity was available to her, had she filed a notice of appeal within the time prescribed by the FCR. Given that the notice of appeal was not lodged within the specified time, it became necessary for the appellant to seek leave to file an appeal out of time and this required her, inter alia, to demonstrate that she had some prospects of success on the appeal. A Judge exercising the appellate jurisdiction of the Court decided that she failed to satisfy this requirement. It is one thing to assert, in retrospect, that the appellant has been denied the opportunity for review by a Full Court; it is another to establish by evidence that she would have chosen to bring the application for leave before a Full Court had she been advised that that course was open to her. Election We have approached the appellant's submissions on the basis that she had an "election" available to her whether to approach a single Judge or a Full Court to hear her application for leave to file a notice of appeal out of time. The judgments of the Court have certainly employed the word "election". In Thomas Borthwick v TPC, the Court said (at 433) that a "party must elect to apply for leave to appeal to this Court constituted by a single Judge or a Full Court". In Reid v Nairn, Fox and Foster JJ said (at 421) that a party wishing to appeal from an interlocutory order "has to make an election whether the Judge or a Full Court should be approached for leave". Their Honours also said (at 421) that the language of s 25(2) of the Federal Court Act "makes it reasonably plain that the issue [that is, the application for leave to appeal] is to be decided by a judge or by a Full Court, whichever is first seized of the matter". In Hall v Anderson, the Court (at 10) said that a party wishing to apply for an extension of time in which to institute an appeal "must elect between approaching a Full Court or a single Judge". In none of these cases was it necessary to resolve the question of who has the ultimate authority to decide whether an application for leave to appeal should be determined by a single Judge or a Full Court. Nor is it necessary to resolve this question in the present case. However, we think it appropriate to make some comments on the issue. Despite the observations in the cases, particularly Reid v Nairn, we think that it is the Court, not the applicant, that has the ultimate authority to determine whether an application for leave should be determined by a single Judge or a Full Court. Section 25(2) of the Federal Court Act merely says that applications, inter alia, for an extension of time in which to institute an appeal "may be heard and determined by a single Judge or a Full Court". The sub-section does not imply, in our view, that a single judge before whom an application is listed (whether or not at the request of the applicant) must determine that application, as distinct from referring it, or proposing that it be referred, to a Full Court if he or she thinks that there are sound reasons for doing so. Similarly, FCR, O 52, r 15(2), although empowering a single Judge to give leave to file a notice of appeal, does not imply that the single Judge is obliged to determine the application notwithstanding he or she forms the view that a Full Court is a more appropriate forum for the particular application. It is, in our view, open to an applicant to request that an application for leave to appeal be listed either before a single Judge or a Full Court, as the applicant prefers. Ordinarily, if such a request is made, we would expect the Registry to accede to it, recognising of course that the composition of the Court, whether comprised of a single Judge or the Full Court, is a matter for the Chief Justice under s 15(1) of the Federal Court Act. If the Registry does not accede to the applicant's request, it is open to the applicant to ask the Court or Judge before whom the matter is listed to consider referring it to a Full Court or a single Judge (as the case may be). It is then for the Judge or the Full Court before whom the matter is listed to consider whether the matter is more appropriately dealt with in the manner suggested by the applicant. If, for example, a single Judge considers that the application for leave should be dealt with by a Full Court, he or she would make directions for the matter to be so listed, subject of course to the authority of the Chief Justice, pursuant to s 15(1) of the Federal Court Act, to determine the constitution of the Court in a particular case and to any arrangements that had been made under that sub-section. If, on the other hand, the single Judge determines the application for leave (whether or not an application is made for the matter to be listed before a Full Court), that is the end of the application. No appeal is available, except by special leave to the High Court. Conclusion The purported appeal from the judgment of Davies J is incompetent. No other basis for setting aside the orders made by Davies J has been shown. The appeal should therefore be dismissed as incompetent. The appellant should pay the first respondent's costs. I certify that this and the preceding fifteen (15) pages are a true copy of the Reasons for Judgment herein of the Court.