CATCHWORDS Federal Court of Australia - Jurisdiction - ' Transitional provisions - Things done in proceedings in Australian Industrial Court deemed to have been done in Federal Ccuurt ~ Whether right of appeal to Full Court of Federal Court from single Judge of Industrial Court - Appeal out of time - Whether special leave to appeal or order to vary time for appesl should be granted — Considerations when matter is interlocutory - Federal Court of Australia (Consequential Provisions) Act 1976, s.4. L. Grollo & Co. Pty. Limited v. Theo Hammond & Ors. VG No. 44 of 1977 Before Bowen, C.J., Nimmo and Keely JJ. Melbourne 14th June, 1977 IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VG No. 44 of 1977 ) ) GENERAL DIVISION CORAM: BOWEN C.d., NIMMO and KEELY JJ. 14 JUNE 1977 L. GROLLO & CO. PTY. LTD. v. THEO HAMMOND and IGOR _OSIDACZ and THEO HAMMOND & PARTNERS and THE ROYAL AUSTRALIAN INSTITUTE OR ARCHITECTS JUDGMENT OF THE COURT This is a motion by L. Grollo & Co. Pty. Ltd., the applicant, agaznst Theo Hammond and Igor Osidacz and Theo Hammond & Partners and The Royal Australian Institute of Architects, respondents, seeking an order for leave to appeal out of time against the orders and directions of Smithers J. made and given on lst November 1976 in the Australian Industrial Court. The orders and directions of the lst November 1976 were made and given in proceedings commenced in the Australian Industrial Court by a writ with a statement of claim endorsed issued on 23rd July 1976. on 1st November 1976 Smithers J., in exercise of the powers conferred by Order 35 Rule 2 of the High Court Rules, rendered applicable by the Conciliation and Arbitration Regulations, decided that certain questions of law be tried before any question or issue ct fact was determined, and he settled the form of the questiors and proceeded to give his answers. The questions and answers are incorporated in his nd order of lst November 1976. The applicant took the view that the answers were unfavourable to its case and applied to the High Court of Australia for leave or special leave to appeal by its notice of motion filed on 22nd November 1976. No right of appeal lay to the Full Court of the Australian Industrial Court. The motion to the High Court came on to be heard on 28th February 1977 and the application was refused. On 7th December 1976, an amended statement of claim was filed by the applicant. On 24th December 1976 the first, second and third respondents filed their statements of defence and on 8th March 1977 the fourth respondent filed its statement of defence. On 16th March 1977 the applacant filed its replies to the statements of defence. On 9th December 1976 the Federal Court of Australia Act 1976 came into force. It provided that no proceeding should be instituted in the Federal Court before a day to be fixed by proclamation as the day on which the Court should commence to exercise its jurisdiction. (See section 2(2)). On 18th January 1977 a proclamation was promulgated fixing the lst February 1977 as the day on which the Court should commence to exercise its jurisdiction. By the Federal Court of Australia (Consequential Provisions) Act 1976, transitional provisions were enacted providing for the transfer of proceedings in certain circumstances from the Australian Industrial Court to this Court. This transfer came into operation on lst February 1977. - ~ ~- me re eer eee wee = On 16th March 1977, the applicant 1ssued a summons in this Court, seeking orders for the recall or negation or variation of the order of lst November 1976. This came before Smithers J. sitting as a Judge of this Court, on 23rd March 1977. A preliminary question was argued before him as to whether the matter was properly before him as a Judge of this Court. All parties argued in favour of the view that it was properly before him. Smithers J. held that it was, but after considering the matter on the merits, refused to make the orders sought. An appeal was brought to the Full court of this Court against the decision of 23rd March 1977. This appeal came on for hearing before the Full Court on 24th and 25th May 1977 and judgment was reserved. On the 25th May 1977, just before the close of the hearing of that appeal, the present motion was filed, seeking leave to appeal against the order of lst November, 1976, and with all parties before the Court, was heard forthwith. Counsel for the applicant undertook to the Court that the affidavit in support of the application would be filed not later than 3.30p.m. on Tuesday, 3lst May 1977. It was argued for the applicant that while no appeal lay te the Australian Industrial Court from the order of lst November 1976, nevertheless an appeal lay to this Court by reason of the provision in section 24(1)(a) of the Federal Court of Australia Act 1976 that an appeal lies from a judgment of this Court constituted by a single Judge to the Full Court. At the time when the judgment of Smithers J. was given on lst November 1976, this Court was not in existence, so that the judgment and order from which the applicant now seeks to appeal, was not in fact a judgment of this Court constituted by a single Judge. The applicant seeks to overcome this difficulty by relying upon section 4 of the Federal Court of Australia {Consequential Provisions) Act 1976. In argument, the applicant placed particular reliance upon section 4(2)(e). Perhaps the argumert may be summarised broadly as follows. The proceedings in the action were transferred to this Court on lst February 1977. The order of lst November 1976 was a thing "done in and in relation to the proceedings in the Australian Industrial Court". Accordingly, the order had to be treated as an order made by a Judge of this Court and therefore an appeal lay as a right to the Full Court of this Court. A preliminary question arises, as 1t did in the appeal heard immediately before this motion was before the Court, as to whether this Court has jurisdiction, on the ground that the case was one where "the hearing of the proceedings (in the Australian Industrial Court) had not commenced". In our reasons for judgment given to-day in relation to the earlier appeal, we have already expressed our view that prior to lst February 1977, the hearing of the proceedings . bad commenced in the Australian Industrial Ccurt within the meaning of section 4. It follows in our view that the proceedings have not been transferred to this Court and the present motion must fail. Nevertheless, since the questions arising upon this motion have been argued, we consider it to be appropriate to express our views on the matters raised. When this Court started exercising jurisdiction on lst February 1977, there existed no rules placing a time limit upon appeals, although on one view of section 59({1) of the Federal Court of Australia Act 1976, it might perhaps have been argued that the High Court Rules immediately became applicable. At all events, rules of this Court were promulgated on 18th February 1977 which, by Order 6, expressly made Order 70 of the High Court Rules applicable in relation to appeals. Order 70 rule 6 is as follows: "(1) The notice of appeal shall be filed and served in the manner prescribed by the last preceding rule - (a) within twenty-one days after - (i) the date when the judgment appealed from was pronounced: (ii) the date when leave or special leave to appeal was granted; or (12ii) any later date fixed for the purpose by the Court appealed from; or (b) within such further time as is allowed by a Justice upon appiication made to him by summons issued within the period of twenty-one days referred to in the last preceding paragraph. (2) Notwithstanding Order 60, rule 6, the summons mentioned in the last preceding sub-rule shall be issued within the period of twenty-one days fixed by that sub-rule, and, in the computation of that period, the time of the vacations shall be included but the Full Court for special reasons may at any time give speciai leave to appeal subject to any conditions which appear just." What the applicant, by its motion, now seeks, is leave of the Full Court to appeal. Perhaps this should be treated as referring to special leave of the Full Court under Order 70 rule 6(2). Assuming section 4(2)(e) of the Federal Court of Australia (Consequential Provisions) Act 1976 applied to the order of lst November 1976, it is far from clear that in consequence a xight of appeal should be held to arise by virtue of the combined operation of that section and section 24(1) of the Federal Court of Australia Act 1976 or, if 1t did, when time for appeal would begin to run. One possible commencement date might be suggested to be lst November 1976; another the lst February 1977; another the 18th February 1977. It was argued for the applicant that time for appeal ran from 23rd March 1977. The basis of this argument was that/was the date of the judgment of Smithers J. who in hearing another application then held that the proceedings in the Australian Industrial Court had been transferred to this Court. We do not think this argument is sound. If the proceedings were transferred, it was transferred by force of the statute not by the decision of the Judge that the statute had transferred it. The 23rd March 1977, therefore, cannot logically be held to be the point at which time for appeal began to run. Whatever date 1t might be, it was conceded for the applicant that time for appeal had expired. If what the applicant was seeking was special leave to appeal under Order 70 rule 6, then in view of the High Court's decision on the applicant's application for special leave to appeal to that Court, it was clear that this Court was most unlikely to grant special leave to appeal to this Court. However, the applicant's argument, notwithstanding the wording of the notice of motion, was put on the basis that section 24(1) of the Federal Court of Australia Act gave an appeal as of right; that the applicant was out of time due to the failue of its legal advisers to realise the effect of section 4 of the Federal Court of Australia (Consequential Provisions) Act; that this Court had power over its own procedures (see Order 9 rule 2 of the Court's Rules); and should grant an extension of time. Considering this as an application for an extension of time, when the time has already expired, the matter to be considered is whether it would be just, having regard to the interests of the applicant and the respondents, to make an order extending time. It is necessary to consider the whole of the circumstances and whether any prejudice to the other party can be met by some appropriate order as to costs. After the order of lst November 1976, the applicant applied to the High Court for leave or special leave and, as has been recited, this was refused. There is before us a transcript record of the argument before the High Court. The Justices of the High Court who heard the application appeared to have two matters particularly in mind. First, the decision of the matters involved in the order of lst November 1976 would not determine the controversy between the parties, and secondly, the order of lst November 1976 was of an interlocutory character and that it was desirable to determine the actual facts and then bring an appeal to the Haigh Court, if this should be desired in the light of the actual facts. In the particular circumstances of this case, it has to be noted also that, even if the argument of the applicant as to the effect of the sections is correct, the respondents have been free of any risk of having to answer an appeal either to the Australian Industrial Court or to any Court other than the High Court, until ist February 1977; that various steps have in the meantime been taken in relation to pleadings, and that they have already been taken on one avenue of appeal. It may be argued it would be unjust that they should now be required to take part in the additional proceedings involved in an appeal to this Court, when it would not determine the controversy between the parties. Indeed, having regard to the whole matter, it seems desirable that the actual facts should be determined and that there should not be further proceedings revolving around assumed facts. It should also be borne in mind that when the actual facts are determined and a decision is given, since the earlier order is interlocutory in character, the applicant will be entitled to litigate all relevant matters upon an appeal against the final order, should this become necessary and be considered advisable. In the result we are of opinion that the motion should be dismissed with costs. The order of the Court will be motion dismissed: order that the applicant pay the respondent's costs.