Meee e CATCHWORDS Practice and Procedure - Application for leave to appeal - whether application for leave to appeal from interlocutory judgment of a single Judge may be made only once or successively - whether application for leave to appeal to the Full Court from the refusal of a single judge to grant leave to appeal from an interlocutory judgment is competent. Federal Court Act 1976 (C'th) ss.24(1A), 25(2). Federal Court Rules Order 52. Reid V Nairn (1985) 60 ALR 419. THOMAS BORTHWICK & SONS (PACIFIC HOLDINGS) LIMITED & ORS v. TRADE PRACTICES COMMISSION. N.S.W. G92 of 1988. BOWEN C.J., LOCKHART and SHEPPARD JJ. Sydney 15 April 1988 IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G.92 of 1988 GENERAL DIVISION ) Application for leave to appeal from a single judge of the Federal Court. BETWEEN: THOMAS BORTHWICK & SONS {PACIFIC HOLDINGS) LIMITED Pirst Applicant BORTHWICKS PLC Second Applicant THOMAS BORTHWICK & SONS (U.K.) LIMITED Third Applicant TRADE PRACTICES COMMISSION ig Respondent MINUTE OF ORDER JUDGES MAKING ORDER Bowen C.d., Lockhart and Sheppard JJ. DATE OF ORDER 21 March 1988. Sydney. WHERE MADE THE COURT ORDERS THAT: The Notice of Motion of 15 March 1988 applying for leave to appeal be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. G92 of 1988 ) GENERAL DIVISION ) BETWEEN: THOMAS BORTHWICK & SONS (PACIFIC HOLDINGS) LIMITED First Applicant BORTHWICK PLC Second Applicant THOMAS BORTHWICK & SONS (U.K.} LIMITED Third Applicant AND: TRADE PRACTICES COMMISSION Respondent COURT: BOWEN C.J., LOCKHART AND SHEPPARD JJ. DATE: 15 APRIL 1988 PLACE: SYDNEY REASONS FOR JUDGMENT THE COURT The question in this case 1s whether an application for leave to appeal from an interlocutory judgment of a single Judge of the Pederal Court may be made once only or successively, and whether such an application may be made to a single Judge of the Court or different 2. Single Judges or a Full Court. A related question also arises, being whether an applicant for leave to appeal who was unsuccessful before a single Judge of the Court may seek leave to appeal to a Full Court from the order refusing leave to appeal. The facts giving rise to the appeal may be briefly stated. On 25 January 1988 the Trade Practices Commission ("the Commission") sought an interlocutory injunction to restrain Australian Meat Holdings Pty. Limited ("AMH") from acquiring the entire issued share capital of Thomas Borthwick & Sons (Australasia) Limited ("Borthwick Australasia"), a wholly owned subsidiary of Thomas Borthwick & Sons (Pacific Holdings) Limited ("Pacific Holdings") and Thomas Borthwick & Sons (U.K.) Limited ("Borthwick (U.K.)") which in turn are wholly owned subsidiaries of Borthwick PLC ("Borthwick PLC").On the same day a single Judge of this Court (Wilcox J.) declined to grant the interlocutory injunctions sought by the Commission and accepted certain undertakings offered by AMH in relation to the conduct of the business of Borthwick Australasia in the event that AMH acquired Borthwick Australasia pending final determination of the matter. Wilcox J. set the matter down for hearing on 29 February 1988. On 26 January 1988, in London, Pacific Holdings and Borthwick (U.K) sold the shares in the capital of Borthwick (Australasia) to AMH. On 8 February 1988 the Commission was granted leave by the Court to amend its statement of claim to join Pacific Holdings and Borthwick PLC as respondents alleging that the acquisition by AMH contravened para. 50(1)(a) of the Trade Practices Act 1974 and that Pacific Holdings and Borthwick PLC were involved in the contravention within the meaning of para. 81(1A)(b) of the Trade Practices Act. 3. Pacific Holdings and Borthwick PLC were represented at the hearing of that motion. Those companies, by their counsel, informed the Court that they appeared for the purpose of contesting jurisdiction only. The matter was adjourned for hearing on the question of jurisdiction to 15 February 1988. On 15 February 1988 Wilcox J. granted leave to the Commission to further amend its statement of claim to join Borthwick (U.K.) asa respondent and ordered that service of the statement of claim be effected on Borthwick (U.K.) by service on its Australian solicitors, Messrs. Allen Allen & Hemsley. The Court also directed that the question of jurisdiction of the Court over Pacific Holdings and Borthwick (U.K.) be determined as part of the final hearing of the substantive issues in the case and not as a preliminary point. On 17 February 1988 the Commission filed an amended statement of claim pursuant to the leave granted by the Court on 15 February. At the commencement of the hearing before Wilcox J. on 29 February 1988, Pacific Holdings, Borthwick PLC and Borthwick (U.K.) ("the Borthwick companies") filed a notice of motion seeking, amongst other things, a declaration that service of the originating process had not been effected on them or any of them or, in the alternative, an order that service of the originating process on them and each of them be set aside, or in the further alternative, an order that the jurisdiction of the Court to grant the relief claimed by the Commission against the Borthwick companies be decided separately from any other question before "any further trial in the proceedings". 4. The notice of motion was heard by Wilcox J. on 29 February and on 4 March. On 4 March 1988 his Honour dismissed the notice of motion, declined to grant leave to appeal from that decision and declined to grant a stay of proceedings whilst leave was sought to appeal from his decision. On 15 March 1988 the Borthwick companies filed a notice of motion in this Court seeking leave to appeal from the judgment of Wilcox J. given on 4 March 1988 and from his Honour's refusal on that day to grant leave to appeal. They also sought a declaration that their applications for leave to appeal were competent. The motion came on for hearing as a matter of urgency before this Full Court on Monday 21 March 1988. By consent, the Court was asked to deal only with the question whether the applications of the Borthwick companies for leave to appeal were competent. We heard argument from counsel for all parties and at the conclusion of argument announced our decision that in the opinion of the Court the applications for leave to appeal were not competent and ordered that the notice of motion be dismissed. We announced that we would publish our reasons for judgment later. These are our reasons. In Reid v. Nairn (1985) 60 A.L.R. 419 a Full Court of this Court, differently constituted (Fox, Forster and McGregor JJ.) considered the questions which arise before us and held that sub-ss. 24(1A) and 25(2) of the Federal Court of Australia Act 1976 ("the Federal Court Act"), when read together, provide that the question of leave to appeal from an interlocutory judgment of a single Judge of this Court is to be decided by either a single Judge or the Full Court 5. whichever is first seized of the matter; that they are true alternatives and not progressive; and that a party wishing to appeal from an interlocutory order must elect whether a single Judge or a Full Court be approached. The Full Court also held in Reid v. Nairn that no appeal lies from a decision of a single Judge refusing or granting leave to appeal. In General Motors-Holden's v. Noack, unreported, judgment delivered on 7 March 1986, a Full Court of this Court, again differently constituted (Smithers, Lockhart and Neaves JJ.), followed Reid v. Nairn. Smithers J. said: "I say nothing as to the correctness or otherwise of the decision in Reid v. Nairn other than I am not convinced that that decision is wrong." Lockhart J., after reviewing the reasoning of the Court in Reid v. Nairn, said: "Although the judgment of the Full Court in Reid v. Nairn 1s of recent origin (it was delivered on 7 June 1985) the proper course for this Court to take, a course followed by a Full Court of this Court, differently constituted, in Chamberlain v. The Queen (1983) 46 A.L.R. 493 at 498, is to follow the judgment of an earlier Full Court of this Court, unless convinced that the earlier decision was wrong. I know of no judgment of this Court to the contrary of that proposition. I say nothing as to the correctness of Reid v. Nairn other than that I am not persuaded that 1t was wrongly decided." Neaves J. agreed with the reasons for judgment of Lockhart J. 6. Reid v. Nairn has been followed by single Judges of the Federal Court: for example, by Morling J. in Re Simpson; Ex parte Stevenson (1985) 7 F.C.R. 126 at 127 and by Burchett J. in Sharp v. The Deputy Commission of Taxation, unreported, judgment delivered 11 March 1988. The correctness of Reid v. Nairn was challenged before us by counsel for the Borthwick companies and it was submitted that we should decline to follow it. It is necessary to examine the Federal Court's jurisdiction with respect to applications for leave to appeal from interlocutory judgments. We should say at the outset that it is common ground between the parties that the judgment of Wilcox J. is an interlocutory judgment. Such a characterisation of the judgment is in our opinion plainly correct for reasons which emerge below. The question whether a judgment is final or interlocutory has been the subject of considerable judicial attention and discussion by learned authors and has been productive of difficulty. Generally, the test to be applied to determine whether a judgment is final or not is whether it finally determines the rights of the parties in issue in the proceeding. The Court is required to have regard to the legal rather than the practical effect of the judgment. This was the essence of the High Court decisions in Licul v. Corney (1976) 50 A.L.J.R. 439; Port of Melbourne Authority v. Anshun Pty. Limited (1980) 147 C.L.R. 35 and Carr v. Finance Corporation of Australia Limited [No. 1] (1981) 147 C.L.R. 246. 7. In Carr v. Finance Corporation of Australia Limited (supra) the High Court held that an order of the Supreme Court of a State refusing to set aside a default judgment did not finally dispose of the rights of the parties; hence the order was not a final order but an interlocutory order and an appeal did not lie as of right to the High Court under the Judiciary Act 1903 s. 35. Mason J. referred to the traditional classification of orders refusing an application to set aside a default judgment as interlocutory because there is the right to make another application and because the order does not deal finally with the rights in contest in the action. His Honour then referred to the other approach which sought to classify such orders as final when their practical effect was to shut out the defendant from contesting the default judgment. His Honour said at 256: "Although the second alternative has some attractions, it has the disadvantage that the character of the order (whether it be final or anterlocutory) could not be determined on its face, but could only be ascertained after an examination of the grounds on which the application to set aside was made, the grounds on which it was refused and the information of a judgment as to the impact of the grounds of refusal on the prospects of bringing a second application. The adoption of this approach would bring yet a further complication to the complexities which already bedevil the existence of appeals as of right to this Court. The prospect that there could be a steady stream of appeals to this Court from orders on applications to set aside default judgments, 1£ the character of a final order be conceded to them, is by no means an inviting prospect. Even so, I would not shrink from making that concession if it be correct in law so to do, in order to do justice to the parties. However, for the reasons already given, I do not consider it to be a correct approach. It goes without saying, that the unsuccessful party can, in an appropriate case, apply for and obtain special leave to appeal. I would therefore allow the objection to competency." 8. For the purposes of the exercise of the Federal Court's jurisdiction the Court may be constituted in either the General Division or the Industrial Division by a single Judge or as a Full Court (sub-s. 14(1) of the Federal Court Act). The jurisdiction of the Court shall be exercised in open court except where s. 17 of the Federal Court Act or another law of the Commonwealth authorises the jurisdiction of the Court to be exercised by a Judge sitting in chambers. "Court" 1s defined by s. 4 as meaning the Federal Court of Australia. "Judge" is defined as meaning a Judge of the Court, and in the expression "the Court or a Judge" means a Judge sitting in chambers. "Full Court" is defined as meaning a Full Court in a division of the Court constituted in accordance with s. 14. The Federal Court is vested with original jurisdiction and appellate jurisdiction by the Federal Court Act. That Act does not specify the original jurisdiction to be given to the Federal Court. Sub-section 19(1) provides that the Court has such original jurisdiction as is vested in it by laws made by the Parliament, while sub-s. 19(2) provides that the original jurisdiction of the Court includes any jurisdiction vested in 1t to hear and determine appeals from decisions of persons, authorities or tribunals other than courts. The original jurisdiction exercised by the Federal Court is given to- ut by various Acts of the Federal Parliament including the Trade Practices Act 1974, the Bankruptcy Act 1966, the Administrative Decisions (Judicial Review) Act 1977, the Conciliation and Arbitration Act 1903 and, more recently, the jurisdiction with respect to taxation and intellectual property vested in the Court by the Jurisdiction of Courts (Miscellaneous Amendments) Act 1987. See also the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) which is not yet in 9. Operation. Under the Administrative Appeals Tribunal Act 1975 the Federal Court hears appeals on questions of law from decisions of that Tribunal: ss. 44 and 45. An appeal to the Federal Court pursuant to s. 44 is not strictly "an appeal", but 1s heard by the Court exercising its original jurisdiction. Section 20 of the Federal Court Act provides that, except as otherwise provided by the Act or any other Act, the original jurisdiction of the Court 1n either division shall be exercised by a single Judge (sub-s. 20(1)). The Chief Justice 1s empowered to direct that, in a matter coming before the Court in its original jurisdiction which in his opinion is of sufficient importance to justify it being heard by a Full Court, the jurisdiction of the Court in that matter shall be exercised by a Full Court (sub-s. 20(1A)). When a matter comes before the Court from a tribunal or authority other than a Court and that tribunal is constituted by, or a member of which 1s, a Judge of the Court or of another Court created by the Federal Parliament, the Full Court shall exercise the Court's original jurisdiction: sub-s. 20(2). Sub-section 44(3) of the Administrative Appeals Tribunal Act 1975 provides that the Federal Court has jurisdiction to hear and determine appeals brought to it under s. 44 and that the jurisdiction may be exercised by the Federal Court constituted as a Full Court and shall be exercised by the Court so constituted if the decision of the Tribunal was given by the tribunal constituted by a presidential member or by members one at least one of whom was a presidential member. The Court's appellate jurisdiction is conferred by s. 24 of the Federal Court Act, which 1s expressed to be subject to that 10. section and to any other Act, and provides that the Court has jurisdiction to hear and determine appeals from judgments of the Court constituted by a single Judge, appeals from judgments of the Supreme Court of a Territory and, 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 a Supreme Court of a State) exercising federal jurisdiction. Sub-section 25(1) provides that the appellate jurisdiction of the Court shall, subject to that section and to the provisions of any other Act be exercised by a Full Court. The critical statutory provisions for present purposes are ss. 24 and 25 of the Federal Court Act to which we now turn. It is necessary to refer to the amendments to those sections. The Federal Court Act was amended by the Statute Law (Miscellaneous Provisions) Act (No. 1) 1984 (Act No. 72 of 1984) (s. 3 and the schedule thereto). The amendments came into operation on 23 July 1984. The amendment inserted sub-section (1A) in s. 24 and substituted a new sub-section (2) ins. 25. Subsection 24(1) has not been amended and it reads as follows: "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." 11. Sub-section 24(1A), inserted by Act No. 72 of 1984, reads as follows: "(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." Sub~section 25(1) has not been amended and it reads: "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." Sub-section 25(2), before its amendment by Act No. 72 of 1984, read as follows: "Applications for leave or special leave to appeal to the Court from a judgment of another court may be heard and determined by a single Judge or by a Full Court and the Rules of Court may provide for enabling such applications to be dealt wath, subject to conditions prescribed by the Rules, without an oral hearing." Sub-section 25(2) now reads: "Applications for leave or special leave to appeal to the Court or for an extension of time within which to institute an appeal may be heard and determined by a single Judge or by a Full Court and the Rules of Court may provide for enabling such applications to be dealt with, subject to conditions prescribed by the Rules, without an oral hearing." The language of sub-s. 25(2) of the Federal Court Act is reminiscent of the language of sub-s. 21(1) of the Judiciary Act 1903, 12. with respect to applications for special leave to appeal to the High Court. That sub-section provides:- "21(1) Applications for special leave to appeal to the High Court from a judgment of another court may be heard and determined by a single Justice or by a Full Court and the Rules of Court may provide for enabling such applications to be dealt with, subject to conditions prescribed by the Rules, without an oral hearing." The legislative framework in which the questions arising in this matter fall to be considered is completed by reference to Order 52 of the Federal Court Rules. Order 52 contains provisions relating to appeals to the Federal Court and applications for leave to appeal. In that Order "application" is defined as meaning an application for leave to appeal and "Court" is defined as meaning the Court exercising its appellate or related jurisdiction under Part III Division 2 of the Federal Court Act. The reference to "related" jurisdiction is primarily to the jurisdiction conferred upon the Federal Court by s. 26 of the Federal Court Act, namely, to hear and determine stated cases or questions of law which have been stated or reserved by a Court from which appeals lie to the Federal Court and which concern a matter with respect to which an appeal would lie from a judgment of the inferior court to the Federal Court. Prior to 15 July 1985 applications for leave to appeal to the Federal Court were governed by the provisions of Division 1 of Order 52, headed "Application for Leave to Appeal". The application was to be determined "by the Court or a Judge". An application for leave to 13. appeal was to be substantially in accordance with Form 54 to the Rules and the respondent to the application was required to enter an appearance. From 15 July 1985, Order 52 was changed with respect to applications for leave to appeal. The heading to Division 1 was altered to read "Leave to Appeal from Judgments other than Interlocutory Judgments of the Court". A new Rule 2A was inserted in Division 1 reading: 'This Division applies to an application for leave to appeal from a judgment other than an interlocutory judgment of the Court." From 15 July 1985 a new Division 1A was inserted into Order 52 which reads as follows: 1 "Division 1A - Leave to Appeal from Interlocutory Judgments of the Court 10(1) An application for leave to appeal from an interlocutory judgment of the Court may be made orally to the Judge who has pronounced the judgment at the time of its pronouncement or within such further time as that Judge may fix. (2) Where an application has not been made in accordance with sub-rule (1), any application shall be made by motion on notice in the proceeding, and the provisions of Order 19 shall apply. (3) An applicant under sub-rule (1) or (2) may present his case and his argument to the Court in writing pursuant to rule 15A." It 1s necessary here to refer to one further decision of this Court which has application to the matters in issue in this appeal. In Aspar Autobarn Co-Operative Society v. Dovala Pty. Limited a Full 14. Court differently constituted (Sweeney, Northrop & Keely JJ.), in an unreported judgment delivered on 21 November 1986, heard and dismissed a motion for leave to appeal from an interlocutory judgment of a single Judge of the Federal Court. Northrop J. appears to have taken the view that the effect of Order 52 rule 10 is that an application for leave to appeal from an interlocutory judgment of a single Judge of the Court must be made in the original jurisdiction of the Court and that an application for leave to appeal made 1n the original proceeding but to a Full Court is not competent. His Honour based his reasoning upon the provisions of the Federal Court Act to which we have referred, the history of amendments to ss. 24 and 25 and the form of Order 52. His Honour distinguished Reid v. Nairn as decided before rule 2A of Order 52 and rule 10 of Division 1A were inserted into the Rules. If his Honour's reasoning is correct a party seeking leave to appeal has no election to apply for leave either to a Full Court or to the Court constituted by a single Judge, but must make application to a single Judge exercising the Court's original jurisdiction. Sweeney and Keely JJ. did not consider the point raised by Northrop J., but their Honours said that they assumed, without deciding, that the motion to the Full Court for leave to appeal was competent and denied leave to appeal on discretionary grounds. In our opinion Northrop J.'s reasoning adopts an interpretation of the relevant rules which negates the operation of ss. 24 and 25 of the Federal Court Act. For the reasons which will emerge below we respectfully disagree with his Honour's views and conclusions on this question. 15. Prior to the amendments to ss. 24 and 25 appeals from interlocutory judgments of single Judges of this Court and from interlocutory judgments of Supreme Courts of the States and Territories lay as of right to this Court constituted by a Full Court. Parliament perceived the need to change this. Parties could, as they sometimes did in practice, bring a string of appeals from interlocutory judgments of a single Judge given in the course of a trial. Such appeals delayed and interfered with the proper conduct of the trial and hampered the proper administration of justice. The purpose of the amendments 1s plain from the text of the amendments themselves when considered in light of the mischief to be cured. The amendments are intended to have the result that appeals from interlocutory judgments may be brought to this Court only by leave and that a party may apply to a single Judge or a Full Court for leave once and only once. No appeal lies from that decision whether as of right or by leave. 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. A single Judge may sit either in open court or in chambers: see the definition of "Judge" in s. 4 to which we referred earlier. In the expression "the Court or a Judge" (which appears in sub-s. 24(1A)), the term "Judge" means a Judge sitting in chambers. The combined effect of sub-ss. 24(1A) and 25(2) is that applications for leave to appeal to the Court and applications for extension of time to appeal shall be heard and determined by a Full Court or by a sangle Judge sitting —--—- - 16. either in open court or 1n chambers. By whomsoever the jurisdiction is exercised it is exercised as part of the Court's appellate jurisdiction. This conclusion 1s plain from the language of ss. 24 and 25. In particular, sub-s. 25(1) provides that the appellate jurisdiction of the Court shall, subject to that section and to the provisions of any other Act, be exercised by a Full Court. It is immediately followed by sub-s. 25(2) the terms of which are mentioned earlier. Although Gibbs C.J. in Re Keely; Ex parte Nuchman Pty. Ltd. (1983-4) 52 A.L.R. 666 at 667 appears to have regarded the question of whether a single Judge of the Court exercised appellate or original jurisdiction in determining an application for leave to file and serve a notice of appeal out of time as open to doubt, in our view any uncertainty has been resolved by the amendment to sub-s. 25(2). The section as amended applies not only to applications for leave to appeal from a judgment of another Court but also to applications for leave to appeal and for an extension of time within which to institute an appeal in respect of a judgment of a single Judge of this Court. The appellate jurisdiction of the Court is generally exercised by a Full Court, but the legislature made an exception to this with respect to the hearing and determination of applications for leave to the Court and for extensions of time within which to institute appeals. This exception has sound practical reasons, given the difficulty of convening Full Courts at short notice in certain circumstances and given the obvious desirability in some cases of applications for leave to appeal being heard and determined by the Judge who made the orders in respect of which leave to appeal is sought, because of his knowledge of the issues in the case. Although it may seem anomalous at first glance that the appellate jurisdiction a 17. of the Federal Court may be exercised in Lhese cases by a single Judge, the apparent anomaly disappears when it is remembered that the sound considerations of policy mentioned earlier underlie the legislative amendments to sub-ss. 24(1A) and 25(2). In any event the fact that a single Judge may exercise appellate jurisdiction is no more anomalous than the fact that the original jurisdiction of the Court may and, in some cases shall, be exercised by a Full Court. For example, certain appeals from the Administrative Appeals Tribunal, to which reference was made earlier, are to be heard by the Full Court exercising original jurisdiction. Order 52 Rule 10 of the Federal Court Rules is an enabling provision. It should be construed liberally in order to achieve the objects of the statute, namely, to avoz1d a multiplicity of applications for leave to appeal. The rule is designed to ensure that a party seeking leave to appeal from an interlocutory judgment of the Court may make the application orally to the Judge who pronounced the judgment at the time of its pronouncement or within such further time as that Judge may fix. Alternatively, the party seeking leave to appeal may approach any Judge of the Court or a Full Court by motion on notice. The rule is intended to encompass all applications for leave to appeal from interlocutory judgments of single Judges of the Federal Court whether made to a single Judge or a Full Court. The reference in sub-rule 10(2) to the "proceeding" is a reference to the proceeding in the Federal Court which commenced with the filing of the initiating process in the Court's original jurisdiction and proceeded to the stage of a hearing and determination in that jurisdiction. The word "proceeding" is not defined by the rules. It bears the construction placed upon it by s. 4 of the Federal Court Act, namely: a 18. "' Proceeding' means 'a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connexion with, a proceeding, and also includes an appeal'." The fact that sub-rule 10(2) requires an application for leave to be made by motion on notice in the proceeding 1s not inconsistent with the fact that the jurisdiction to hear and determine that application 1s within the Court's appellate jurisdiction, whether that jurisdiction is exercised by a Full Court or a single Judge. It is, we think, more convenient that applications for leave to appeal, whether heard by a Full Court or a single Judge, are brought by motion on notice entitled in the original proceeding which gave rise to the judgment from which leave to appeal is sought and numbered accordingly. If leave to appeal is granted a fresh number may be assigned in the usual way to the appeal; but this circumstance does not dimianish the validity of our opinion that the bringing, hearing and determination of the application for leave to appeal is within the Court's appellate jurisdiction. In our opinion, sub-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 19. nor successive. Once the order has been made granting or refusing leave, no appeal lies from that order. To hold otherwise would set at nought the amendments made to the Federal Court Act by Act No. 72 of 1984 by the insertion of sub-s. 24(1A) and the substitution of the new sub-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. We do not find it necessary to examine the various cases to which we were referred relating to interlocutory judgments. They were sufficiently canvassed in argument and the answer to the question before us lies with the proper construction of ss. 24 and 25 of the Federal Court Act. In our opinion the Borthwick companies, having applied unsuccessfully to Wilcox J. for leave to appeal from his Honour's judgment have made their election and cannot now apply again for leave to appeal therefrom. Nor can leave to appeal be sought from his Honour's decision refusing leave. For these reasons we held that the applications for leave to appeal before this Full Court were not competent and dismissed the notice of motion with costs. I certify that this and the preceding eighteen (18) pages are a true copy of the Reasons for Judgment herein of the Court. 4, Date: 15 April 1988 Counsel for Applicants: instructed by: Counsel for Respondents: instructed by: Date of Hearing: Date of Judgment: 20. B. Oslington Q.C. with R.J. Powell Allen Allen & Hemsley C.A. Sweeney Q.C. with J. Hilton Australian Government Solicitor 21 March 1988 21 March 1988