Joseph Richard Bryant v Commonwealth of Australia [1998] FCA 1319 (20 October 1998)

Last Updated: 22 October 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1084 of 1998

BETWEEN:	JOSEPH RICHARD BRYANT Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent
JUDGE:	TAMBERLIN J
DATE OF ORDER:	20 October 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The notice of motion filed by the applicant is dismissed.

2. The notice of motion filed by the respondent is allowed and the notice of appeal is struck out as incompetent.

3. Costs of both notices of motion be paid by the applicant.

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	NG 1084 of 1998

BETWEEN:	JOSEPH RICHARD BRYANT Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent

JUDGE:	TAMBERLIN J
DATE:	20 OCTOBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Mr Bryant has filed a notice of motion on 13 October 1998 seeking expedition of his appeal to the Full Court from an interlocutory judgment of Wilcox J, delivered on 30 September 1998. The appeal was lodged without leave of the Court.

Order 52 r 10 of the Federal Court Rules ("the Rules") requires that a notice of motion seeking leave to appeal from an interlocutory judgment be filed within 7 days from the date of the judgment. This was not done.

The respondent filed a notice of motion on 15 October 1998 to strike out the appeal brought by Mr Bryant as incompetent pursuant to O 52 r 18 of the Rules. This application is made on two grounds. The first is that the decision of his Honour was interlocutory in character and that no leave was granted to appeal the decision. It is said that any application made now would be out of time and would require an extension. Such an extension and grant of leave has been sought by the applicant but the respondent submits that this is not an appropriate case in which to grant an extension or leave.

The second ground submitted by the respondent to strike out application is that the Federal Court has no jurisdiction to deal with the questions raised in the notice of the appeal. This is because the matters sought to be raised, in substance, dispute the validity of the election or the returns filed. These are matters which are within the exclusive jurisdiction of the Court of Disputed Returns pursuant to s 353(1) of the Commonwealth Electoral Act 1919 (Cth).

I am satisfied that there is substance in this challenge to competency. Orders 1 to 4 in the notice of appeal raise questions as to validity of the election or the returns. This Court has no jurisdiction to make orders with respect to these matters.

In relation to declaratory Orders 5, 6 and 7 sought in the notice of appeal, I am not satisfied that these orders can be made. They are final in character and were not the subject of consideration or determination by Wilcox J in his interlocutory decision. In addition, they are too vague and uncertain to properly be the subject of a claim for a declaration of right.

I am of the view that the notice of appeal is clearly incompetent and in these circumstances the appropriate course is to strike out the notice of appeal, which has been filed without the necessary leave. Accordingly, I strike out the notice of appeal. I dismiss the applications made by Mr Bryant. Costs of the applications should be paid by Mr Bryant.

I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated: 20 October 1998

Solicitor for the Applicant:	Wayne Levich and Associates
Counsel for the Respondent:	Ms R Henderson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	15 October 1998
Date of Judgment:	20 October 1998