Tait v Harris

REASONS FOR JUDGMENT 1 On 26 March 2003, the applicant, Mr Tait, applied for a stay of an order made in the Magistrates Court at Townsville on 5 February 2003. The stay was refused by Federal Magistrate Coker on 2 April 2003. 2 On 14 April 2003, Mr Tait filed an application in this Court for leave to appeal from the order of Federal Magistrate Coker refusing the stay. The application for leave to appeal was in Form 54 of the Federal Court Rules ("the FCR") as required by O 52 r 4 of the FCR. That form makes no reference to the election which exists under s 25(2) of the Federal Court of Australia Act 1976 (Cth) ("the Act") to have the application for leave to appeal heard and determined by a single judge or a Full Court of this Court. 3 The District Registry endorsed the application in the place provided for a time and date of hearing as 9.30 am on 2 May 2003 and returned the service copies as endorsed to Mr Tait. The endorsement was for a directions hearing on that date, notwithstanding that this did not appear on the application form, and Mr Tait was advised accordingly. 4 On 15 April 2003, Mr Tait wrote to the Registrar of the Court electing to have his application for leave to appeal heard and determined by a Full Court. In support of his election, Mr Tait relied upon the decision of the Full Court in Reid v Nairn (1985) 60 ALR 419. 5 On 2 May 2003, the respondent to the application for leave to appeal, a Deputy Registrar of the High Court of Australia, advised the Court by facsimile that she would not be participating in the proceedings, abiding any order of the Court save as to costs. Mr Tait, on the hearing on 2 May 2003, pressed his election to have the issue of leave to appeal heard by a Full Court. 6 Section 24 of the Act provides: "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 (other than the Australian Capital Territory or the Northern Territory); and (c) in such cases as are provided by any other Act, appeals from judgments of a court (other than a Full Court of the Supreme Court) of a State, the Australian Capital Territory or the Northern Territory, exercising federal jurisdiction; and (d) appeals from judgments of the Federal Magistrates Court exercising original jurisdiction under a law of the Commonwealth other than: (i) the Family Law Act 1975; or (ii) the Child Support (Assessment) Act 1989; or (iii) the Child Support (Registration and Collection) Act 1988; or (iv) regulations under an Act referred to in subparagraph (i), (ii) or (iii). (1AAA) An appeal may not be brought to the Court from a judgment of the Court constituted by a single Judge exercising the appellate jurisdiction of the Court in relation to an appeal from the Federal Magistrates Court. (1A) An appeal shall not be brought from a judgment referred to in subsection (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal. (5) A reference in this section to the Full Court of the Supreme Court of a State or Territory shall be read as a reference to the Supreme Court of a State or Territory when constituted by 2 or more judges, and includes the Supreme Court of a State or Territory when so constituted for the purpose of sitting as the Court of Appeal of the State or Territory." 7 Section 25 of the Act provides: "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. (1A) The appellate jurisdiction of the Court in relation to an appeal from a 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. (1B) Subsection (1A) has 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." 8 In Reid v Nairn, the Court held (per Fox and Foster JJ at 421): "Section 24 deals with the appellate jurisdiction of the court and sub-s (1A) qualifies the right of appeal in interlocutory matters which the section would otherwise be understood to give. The primary argument has been that the phrase 'the Court or a Judge' in s 24(1A) and the corresponding phrase in s 25(2), taken together, mean that the two courses are available, cumulatively. Section 25 concerns exercise of the appellate jurisdiction of the court and the manner of invoking, or seeking to invoke, its exercise. The substituted sub-s (2) of that section deals specifically with, inter alia, applications for leave to appeal to the court and provides that they 'may be heard and determined by a single Judge or by a Full Court ...'. In our view this language, and particular the use of 'determined', makes it reasonably plain that the issue is to be decided by a judge or by a Full Court, whichever is first seized of the matter. There are the alternatives, but they are true alternatives, and are not to be understood in the progressive sense that the appellant relies upon. This is a different question from whether an appeal lies." 9 A later Full Court of this Court (Bowen CJ, Lockhart and Sheppard JJ) in Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424 was invited to decline to follow the decision in Reid v Nairn on the basis that it was incorrectly decided. The Court declined to do so and, after a thorough consideration of the relevant sections of the Act and their legislative history, said (at 432 - 433): "In our opinion, ss 24(1A) and 25(2) of the Federal Court Act, when read together, mean that application may be made to either a single judge or a Full Court of the Federal Court for leave to appeal from an interlocutory judgment, whether an interlocutory judgment of the Court constituted by a single judge or an interlocutory judgment of the Supreme Court of a State or Territory. 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, the parties' election is between true alternatives which are neither progressive nor successive. Once the order has been made granting or refusing leave, no appeal lies form that order. To hold otherwise would set at nought the amendments made to the Federal Court Act by Statute Law (Miscellaneous Provisions) Act (No 1) by the insertion of s 24(1A) and the substitution of the new s 25(2). It follows that, far from being convinced that the judgment of Fox and Forster JJ in Reid v Nairn was wrong, we are convinced that it was right and should be followed by us." 10 The listing of an application for leave for directions before a single judge of the Court does not, without more, mean that the judge is "seized" of the matter in the sense referred to by their Honours in Reid v Nairn. Until a judge is seized of the matter, it cannot be said that an election for the purposes of s 25(2) of the Act has been made. It is unnecessary in this case to express any view as to when and in what circumstances the right to make an election under s 25(2) is lost. It is sufficient to hold that Mr Tait had the right to make an election which he did by his letter dated 15 April 2003. 11 The Court directs that the application of Mr Tait for leave to appeal be listed to be heard and determined by a Full Court of this Court. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.