Hu v Giles

REASONS FOR JUDGMENT 1 This is an Amended Notice of Motion amended on 20 May 2010 by which the respondents, Christine Giles and the Commonwealth Ombudsman seek that the appeal of Mr Hu filed on 3 March 2010 be dismissed pursuant to Order 52, rule 18(1) of the Federal Court Rules. Order 52, rule 18 provides: (1) A respondent may move on notice at any time for an order dismissing an appeal as incompetent. (2) Upon the hearing of the motion, the burden of establishing the competency of the appeal is on the appellant. 2 Logan J, on 26 February 2010, refused to grant to the applicant, Mr Hu, an extension of time to appeal from a decision of the Federal Magistrates Court. The question that the Notice of Motion of the respondents raises is whether, in so ordering, Logan J was competently exercising the appellate jurisdiction of the Court. 3 The submissionon behalf of the respondents is that his Honour was and, in the circumstances, Mr Hu's appeal is incompetent. His only avenue for challenge from the judgment of Logan J is by way of an application for special leave to appeal to the High Court of Australia. 4 On 4 December 2009 the applicant applied for an extension of time in which to file and serve a Notice of Appeal from the judgment of the Federal Magistrates Court given on 19 March 2009 at Brisbane. 5 The application said in paragraph 2: An extension of time is required because a notice of appeal was not filed and served within the time limited by Order 52, rule 15. 6 At the time that application for an extension of time to file and serve a notice of appeal was made, s 25 of the Federal Court of Australia Act 1976 (Cth) (the Act) provided as follows: 25 Exercise of appellate jurisdiction (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. (1A) The appellate jurisdiction of the Court in relation to an appeal from a judgment, other than a migration judgment, of the Federal Magistrates Court is to be exercised by a Full Court unless the Chief Justice considers that it is appropriate for the appellate jurisdiction of the Court in relation to the appeal to be exercised by a single judge. (1AA) The appellate jurisdiction of the Court in relation to an appeal from a migration judgment of the Federal Magistrates Court is to be exercised by: (a) a single Judge; or (b) if a Judge considers that it is appropriate for the appellate jurisdiction of the Court in relation to the appeal to be exercised by a Full Court - a Full Court. (1B) Subsection (1A) and (1AA) have effect subject to subsections (2) and (2B). (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. (2A) The Rules of Court may make provision enabling applications of the kind mentioned in subsection (2) to be dealt with, subject to conditions prescribed by the Rules, without an oral hearing. (2B) A single Judge or a Full Court may: (a) join or remove a party to an appeal to the Court; or (aa) give summary judgment; or (ab) make an interlocutory order pending, or after, the determination of an appeal to the Court; or (b) make an order by consent disposing of an appeal to the Court (including an order for costs); or (ba) make an order that an appeal to the Court be dismissed for want of prosecution; or (bb) make an order that an appeal to the Court be dismissed for: (i) failure to comply with a direction of the Court; or (ii) failure of the appellant to attend a hearing relating to the appeal; or (bc) vary or set aside an order under paragraph (ab), (ba) or (bb); or (c) give directions about the conduct of an appeal to the Court, including directions about: (i) the use of written submissions; and (ii) limiting the time for oral argument. (2C) The Rules of Court may make provision enabling matters of the kind mentioned in subsection (2B) to be dealt with, subject to conditions prescribed by the Rules, without an oral hearing. (3) Except where the Chief Justice considers it impracticable for the Court to be so constituted, a Full Court of the Court for the exercise of jurisdiction in an appeal from a judgment of the Supreme Court of a Territory shall include at least one Judge who holds office as a Judge of the Supreme Court of that Territory. (4) The jurisdiction of the Court in an appeal from a judgment of the Supreme Court of a Territory constituted by 2 or more Judges shall be exercised by a Full Court of the Court constituted by not less than 5 Judges. (5) Subject to any other Act, the jurisdiction of the Court in an appeal from a judgment of a Court of summary jurisdiction may be exercised by one Judge or by a Full Court. (6) The Court constituted by a single Judge may state any case or reserve any question concerning a matter with respect to which an appeal would lie from a judgment of the Judge to a Full Court of the Court for the consideration of a Full Court and the Full Court has jurisdiction to hear and determine the case or question. 7 The short, but by no means easy point, is whether the effect of s 25(1A) and s 25(1B) means that an application for an extension of time within which to institute an appeal is required to be heard by a single judge only if the Chief Justice has considered that it is appropriate for the appellate jurisdiction of the Court in relation to the appeal to be exercised by a single judge, or whether, independently of whether that positive act by the Chief Justice has been made, it is competent for a single judge to hear an application for an extension of time within which to institute an appeal to the Court. 8 It seems to me that the question of whether it is competent for a single judge to entertain an application for an extension of time within which to institute an appeal to the Court does not depend on whether there has been, prior to that hearing by a single judge, the positive act by a Chief Justice of considering it is appropriate for the appellate jurisdiction of the court, in relation to an appeal from the Federal Magistrates Court that is not a migration judgment, to be exercised by a single judge. 9 In my opinion, the four matters specified in s 25(2) can be heard and determined by a single judge. This is so independently of whether the appellate jurisdiction, in relation to a non migration judgment of the Federal Magistrates court, is to be exercised by a Full Court or by a single judge, if the Chief Justice considers it appropriate for that exercise. 10 Section 25, as it stood prior to its amendment coming into affect on 1 January 2010, contemplated in my view that, first, the appellate jurisdiction of the Court was to be exercised by a Full Court, but that applications for the four matters, referred to in s 25(2), could be heard and determined by a single judge or by a Full Court. The amendments that came into effect on 1 January 2010, s 25(2) in particular, has the consequence that those applications must be heard by a single judge unless the single judge considers that it should be heard by a Full Court. 11 Mr Hu has argued, quite eloquently, that it was necessary for the Chief Justice, by a positive act, to consider that it was appropriate for the appellate jurisdiction to be exercised by a single judge before the various matters in s 25(2) could be heard and determined by a single judge. In my view, s 25(1B) has the consequence that, independently of whether the appellate jurisdiction of the Court in relation to a non-migration judgment of a Federal Magistrates Court is ultimately to be exercised by a Full Court or by a single judge, there is power, prior to any such positive act, for an application - in this case, for an extension of time within which to institute an appeal to the Court - to be heard and determined by a single judge. 12 The effect of the amendments introduced on 1 January 2010 is to remove any suggestion that there was an option available to an applicant as to whether the applications referred to in s 25(2) are to be heard by a single judge or by a Full Court. 13 I am satisfied that the exercise of the jurisdiction of the Court by Logan J to consider whether an extension of time within which to institute an appeal to the Court should be allowed was a competent exercise of the appellate jurisdiction of the Court. That has the consequence that Mr Hu's notice of appeal is incompetent. Any challenge to the judgment of Logan J has to be prosecuted solely by an application for special leave to appeal to the High Court of Australia. 14 I should in this context also refer to Order 52, rule 2AA of the Federal Court Rules. 15 That rule provides: An application mentioned in subsection 25(2) of the Act must be heard and determined by a single Judge unless: (a) a Judge directs that the application be heard and determined by a Full Court; or (b) 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. As Buchanan J observed in Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2008] FCA 47: Any question about that aspect of the Court's practice (and power) was, in 2005, put beyond further debate by O 52, r 2AA of the Federal Court Rules which directs that an application under s 25(2) of the Act must be heard and determined by a single judge unless a judge directs that the applicant be heard and determined by a Full Court. 16 In an early and important case of Thomas Borthwick & Sons v the Trade Practices Commission (1988) 18 FCR 424, the Full Court (Bowen CJ, Lockhart and Sheppard JJ) said in respect of a refusal by a single judge of the Court to grant leave to appeal against an interlocutory judgment, that s 24(1A) and s 25(2) of the Act, when read together, meant that an application might be made to either a single judge or a Full Court of the Federal Court for leave to appeal from an interlocutory judgment. The party must elect to apply for leave to appeal to a single judge or to a Full Court; however the election was between two alternatives. Once an order had been made granting or refusing leave, no appeal lay from that order. 17 At page 431, the Full Court said: Applications for leave to appeal to the Court or for an extension of time within which to institute an appeal are heard and determined by the Court in the exercise of its appellate jurisdiction, not its original jurisdiction, notwithstanding that such applications may be heard not only by a Full Court but by a single judge. 18 In Harding v Deputy Commissioner of Taxation [2008] FCA 1516, Moore J held: … [A]ll s 25(2) does is confer appellate jurisdiction on single judges and Full Courts to deal with applications for leave to appeal. Order 52, r 2AA prescribes, in my opinion unexceptionably, the mechanism that determines whether this jurisdiction will be exercised by a single judge, on the one hand, or a Full Court, on the other. As Buchanan J correctly observed in McDonald's Australia Ltd v Federal Commissioner of Taxation (No 2) (2008 69 ATR 898, referring to his Honour's earlier judgment in Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2008] FCA 47, the provisions of O 52, r 2AA admit no debate about the existence of any such right of election. There is none. 19 Since, in my judgment, it was competent for Logan J to entertain the application of Mr Hu for an extension of time for an appeal from a decision of the Federal Magistrates Court in the absence of any positive act by the Chief Justice directing the appellate jurisdiction in respect of the Federal Magistrates judgment to be entertained by a single judge, and since, in my judgment, that exercise of jurisdiction was in the appellate jurisdiction of the court, it is not competent to appeal to a Full Court of the Federal Court from that judgment, and the only avenue of further appeal or challenge by Mr Hu is by way of special leave to the High Court of Australia. 20 The Court orders that the appeal is dismissed as incompetent, pursuant to O 52 r 18(1) of the Federal Court Rules. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.