Kristoffersen v Department of Employment, Workplace Relations

Federal Court of Australia (Full Court)|2002-08-26|Before: Spender J, Kiefel J, Dowsett JJ, Drummond J

1 DRUMMOND J: The respondent in the proceedings, by notice of motion, challenges the competency of what it describes as "the appeal" by the applicant in the proceedings. In fact, as is correctly noted in the affidavit of Ms McNeilly filed in support of the objection to competency, all that is now before the Court is an application filed by the applicant in the proceeding on 20 June 2002 seeking leave to appeal an order of Spender J on 14 June 2002 by which order his Honour dismissed the applicant's application to extend the time to appeal the judgment of Kiefel J given on 8 February 2002. 2 It is necessary to say something of the background to the motion now before us. The applicant wished to inspect certain documents held by a company engaged by the respondent under a scheme to provide a service to assist unemployed persons to establish small businesses. The documents in question related to the applicant's application for such assistance. The Administrative Appeals Tribunal refused to give him access to some of these documents. He appealed the Tribunal decision to this Court and it was, as I have said, on 8 February last that Kiefel J dismissed the appeal. 3 The applicant had until 1 March 2002, ie, twenty-one days from 8 February, to file a notice of appeal as of right against Kiefel J's judgment. The applicant says he presented his notice of appeal against the judgment a few days late on 4 March, though the registry did not accept it for filing. Ultimately, he filed an application for an extension of time within which to appeal Kiefel J's judgment on 22 March last. On 14 June, in a reserved judgment after a hearing held on 21 May, Spender J, as I have indicated, dismissed the application for the extension of time to appeal with costs. 4 On 20 June, the applicant filed an application for leave to appeal Spender J's decision. In the draft notice of appeal accompanying this application, one of the points raised by the applicant was his claim to having a right of appeal to a Full Court against the judgment of Kiefel J. But what is at issue here is whether the applicant has a right of appeal against Spender J's dismissal of his application for an extension of time to appeal to the Full Court against Kiefel J's judgment. That is the issue raised by the respondent's motion challenging the competency of the present application for leave to appeal Spender J's order. 5 Unless the applicant can show that his application of 20 June last for leave to appeal this order of Spender J is a valid proceeding, he lost any right to challenge Kiefel J's judgment when Spender J on 14 June dismissed his application of 22 March for the extension of time necessary to launch an appeal against Kiefel J's judgment. 6 The respondent, in support of the objection to competency, submits that, in hearing the applicant's appeal from the Tribunal, Kiefel J was exercising the original jurisdiction of this Court, but that, in hearing the application for an extension of time to appeal Kiefel J's judgment, Spender J was exercising the appellate jurisdiction of the Court. The respondent submits that the Full Court does not have jurisdiction to review the decision of Spender J of 14 June because the appellate jurisdiction of the Court exercised by his Honour on that occasion has been exhausted. 7 The respondent, in support of its objection to competency, relies upon a number of decisions of the Full Court: Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424, Currie v The Queen [1992] FCA 862, Hall v Anderson [1997] FCA 654, Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 and Potier v Minister for Immigration and Multicultural Affairs [2001] FCA 1770. 8 The respondent's objection to the competency of the present application is, in my view, well-founded. Spender J was exercising the appellate jurisdiction of the Court when he dealt with the application to extend the time within which to appeal Kiefel J's judgment. So much is apparent from s 25(2)(b) the Federal Court of Australia Act 1976 (Cth). In the decision in Wati, this Court applied the principle laid down in Thomas Borthwick and held that, in circumstances similar to the present, if an application of the present kind is brought before a single judge pursuant to s 25(2)(b), rather than before the Full Court, the decision of the single judge exhausts the appellate jurisdiction of the Court so it is not competent for a party dissatisfied with the decision of the judge to appeal it. See the discussion in Wati at 548, F to G. 9 The only issue of concern that has emerged in the course of the present litigation in this Court arises from the fact that, on 13 March 2002, the Deputy District Registrar wrote to the applicant a little while before he filed his application for an extension of time to appeal Kiefel J's judgment, but obviously in connection with documents presented to the registry in relation to that proceeding, to say this:

"The Rules allow you to make an election as to whether or not you wish a single judge or the Full Court to hear your application for leave to appeal as a preliminary issue. Would you therefore please indicate when returning your notice of address for service whether you wish the question of leave to appeal to be dealt with by a single judge or by a Full Bench of three judges."

10 It appears that, in response to that letter, the applicant, on 19 March, in returning the documents relating to the application for the extension of time to the registry, said:

"This is also my formal request, as instructed by Mr Ramsey, to have this matter heard by the full court and enclose the three copies as instructed."

11 The matter, ie, the application for the extension of time, however, as I have already indicated, did not come before the Full Court for hearing, but before a single judge, Spender J, on 21 May. The hearing was quite lengthy for an application of that kind. According to the transcript, it commenced at 10.26 am and concluded at 11.20 am. It is clear, in my opinion, from the transcript of the proceedings on 21 May that Spender J decided to embark upon a hearing of the application for an extension of time himself and that he heard full argument from both Mr Swan, counsel who appeared for the respondent on that occasion, and from Mr Kristoffersen, on whether the extension of time should be granted. Though Mr Kristoffersen put various arguments to his Honour on that occasion as to why he should have the extension of time sought, he nowhere gave any indication of concern at the matter being dealt with by his Honour rather than by a Full Court. 12 It could be said that if the applicant did in truth have the right to determine, as he purported to do by taking up the invitation extended to him by the Deputy District Registrar, whether his application for an extension of time should be heard before a single judge or a Full Court and if he had determined that it should be heard before a Full Court, there would be a strong argument that, by his participation in the hearing on 21 May without protest at Spender J dealing with the matter, he waived any right to maintain such an election to have the matter heard by the Full Court. But, in my opinion, there is a complete answer to any suggestion that a litigant has a right under s 25(2)(b) to determine, to the exclusion of everyone else, whether an application of the present kind will be heard by a single judge or the Full Court. In Wati, the Full Court said this, at 554:

"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 subsection. 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."

13 That, in my opinion, is a clear statement that there is in truth no election available to a litigant to determine which is the forum in which an application of the present kind will be held. As their Honours say, the litigant can request that the matter be heard either by a single judge or by a Full Court. But it is for the Court to determine, having regard to considerations such as the importance of the issue raised and the efficient deployment of judicial resources and other matters, which forum will in fact be constituted to deal with the application. 14 For these reasons, I would uphold the objection to competency and dismiss the application for leave to appeal the order of Spender J. 15 COOPER J: I agree. 16 DOWSETT J: I also agree.

after hearing submissions on costs: 17 DRUMMOND J: The order of the Court, therefore, is that the application for leave to appeal the judgment of Spender J of 14 June 2002 is dismissed as incompetent. The Court proposes to order in accordance with the general rule that the applicant in the proceeding, ie, the respondent to the objection to competency, pay the respondent in the proceedings costs of and incidental to the objection and to the originating application, save to the extent that costs have been incurred on the respondent's side in respect of legal representation resident in Canberra. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Drummond, Cooper and Dowsett.

Associate: Dated: 2 September 2002 Counsel for the Applicant: The applicant appeared in person.

Solicitor for the Respondent: Australian Government Solicitor

Full Court Federal Court of Australia Act 1976(Cth)s 25(2)(b)

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